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What Marital Rights Do Same-Sex Couples Still Lack?

HandelontheLaw.com Staff Writer

Wednesday, December 11, 2013



What Marital Rights Do Same-Sex Couples Still Lack?
Same-Sex Couple

On November 20, 2013, Illinois became the 16th state to legalize same-sex marriage. Therefore, same-sex legally married couples in any of those 16 states (and the District of Columbia, which also legalized gay marriage) will have all the benefits, rights and privileges of legally married heterosexual couples; right? WRONG! Same-sex couples, whether or not they are legally married, still have a long way to go before attaining the same rights as their “straight” counterparts, though they have more benefits under federal law than do same-sex couples in domestic partnerships or civil unions. As of December 31, 2003, the U. S. General Accounting Office listed 1,138 federal statutory provisions in which marital status is a factor for determining benefits, rights and privileges. Same-sex couples who are in domestic partnerships or civil unions may have some state benefits but they receive no federal marital benefits because federal law does not recognize domestic partnerships or civil unions. Legally married same-sex couples, on the other hand, receive some benefits under federal law.

In the 2013 case U. S. v. Windsor, the U. S. Supreme Court ruled that restricting “marriage” and “spouse” to heterosexual unions is unconstitutional under the 5th Amendment’s Due Process Clause; therefore, legally married same-sex couples are entitled to federal benefits…maybe. Different federal agencies have different eligibility rules affecting whether and to what extent these couples will actually enjoy federal benefits. Some federal agencies base eligibility on the state of celebration (in which the marriage ceremony was performed), even if their state of residence does not recognize legal same-sex marriage. The U. S. Office of Personnel & Management and the U. S. Citizenship and Immigration Services maintain that if the marriage was legally valid in the state in which it was performed, then the couple has the same marital benefits as a heterosexual couple for purposes of federal employment and immigration. Meanwhile, the U. S. Department of the Treasury recognizes all legally married couples, whether the marriage was performed in a state, the District of Columbia, any U. S. territory or any foreign country that allows same-sex marriages. Meanwhile, other federal agencies base eligibility on the state of domicile: even if you were legally married in a state allowing same-sex marriage, you must reside in a state that recognizes the legality of your same-sex marriage in order to receive benefits. This is true of benefits under the Social Security Administration, Supplemental Security Income, Medicaid, Medicare, the Family Medical Leave Act and Bankruptcy.

As you can see, the current situation for same-sex couples is complex. First, the 50 states and the District of Columbia treat same-sex couples irregularly, affecting their marital rights under state law(s): some states ban same-sex marriage and one or more other same-sex unions; some states just ban same-sex marriage; some states neither ban nor recognize same-sex marriages or unions; some states will not allow same-sex marriage but will recognize a same-sex marriage performed elsewhere; some states grant certain rights to same-sex couples independently from marriage or legal unions; some states allow unions with some rights like those bestowed by marriage; and some states and the District of Columbia have fully legalized same-sex marriage. Secondly, same-sex couples must maneuver through various federal eligibility requirements: same-sex couples are entitled to no federal benefits if they are united in domestic partnerships or civil unions such as those allowed in Colorado, Nevada, Oregon and Wisconsin; meanwhile, in order to receive federal benefits administered by the U. S. Office of Personnel & Management, the U. S. Citizenship and Immigration Services, or the U. S. Department of the Treasury, same-sex couples must be legally married in states/district that have legalized same-sex marriage; meanwhile, in order to receive federal benefits under the Social Security Administration, Supplemental Security Income, Medicaid, Medicare, the Family Medical Leave Act and Bankruptcy, the same-sex couple must be legally married by the laws of a state and also reside in a state that legally recognizes same-sex marriage. Finally, the national situation is very fluid, with changing state laws affecting eligibility for both state and federal marital benefits. Clearly, the route to the most state and federal marital benefits is both marriage and residence in a state/district that has legalized same-sex marriage. As of November 20, 2013, those are: California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Washington. As of December 2, 2013, they will include Hawaii. As of June 1, 2014, they will also include Illinois.

DO’S AND DON’TS

DON’T be intimidated by the process or the people.

DO both legally marry and reside in a state/district that has legalized same-sex marriage in order to enjoy the most state and federal marital benefits.


By Kathy Catanzarite

[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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